The Protection of the Reputation of a Political Party
In Case No. Up-530/14 (Decision dated 2 March 2017, Official Gazette RS, No. 17/17), the Constitutional Court decided on the constitutional complaint of the Slovene Democratic Party (Slovenska demokratska stranka – SDS) against a judgment by which a court rejected its lawsuit against a newspaper publisher. By the lawsuit the complainant demanded a public apology for the statement that the money from Patria ended up in the possession of the SDS. The complainant claimed that the title of the relevant article in itself contained false statements regarding the facts, as it undeniably attributed illegal conduct to the complainant – i.e. the taking of a bribe, whereas the only source named by the article denied that he had made the statement that the article attributed to him. The court held that due to the fact that the title of the article “The money from Patria did not end up with Janez Janša, but with his SDS party” is open to interpretation and does not carry an unequivocal message, it cannot be inadmissible on its own. Therefore, it assessed its meaning in the context of the article as a whole. It reached the conclusion that the article as a whole also does not report that an illegal act was committed, but merely that the Finnish police have sufficient evidence for such a conclusion. As the journalist modified the statement of the Finnish police officer, who in fact did not say that they have enough material for such a conclusion, but merely that “they have an enormous amount of data indicating that the money had flown into Slovenia” and that “the flow of the money to the SDS is one of the main lines of the investigation,” the court held that the interference with the reputation of the SDS was inadmissible. It wrote that the attributed statement can only lead the average reader to the conclusion that enough evidence has been gathered to establish that the political party received money for concluding a contract. However, the court rejected the demand for an apology as entailing an excessively severe punishment because the title was open to interpretation and could have several meanings, and the assessment of whether the money actually ended up with the political party was not the subject matter of the civil proceedings, nor did it follow from the findings of the proceedings that there had been no connection between Patria and the political party.
In its constitutional complaint, the complainant claimed, inter alia, that the court violated its right to reputation that follows from Article 35 of the Constitution, as it did not strike a fair balance with the freedom of expression of the opposing party that is guaranteed by the first paragraph of Article 39 of the Constitution. In the complainant’s opinion, the court failed to adequately assess the meaning of the title of the article. In its opinion, for the average reader it meant that the complainant received money from Patria, which is an allegation of corruption that is one of the most reprehensible illegal acts in politics.
The Constitutional Court first adopted a position with regard to the question of whether the Constitution protects the right of a political party to reputation. By its very nature, a legal entity, such as a political party, cannot be a holder of the right to human dignity and consequently also not of the constitutional right to the protection of (subjective, intrinsic) honour – i.e. to the protection of its perception or awareness of itself as a worthy being. Political parties do, however, enjoy the right to the protection of their reputation that follows from Article 35 of the Constitution. Unless they are protected from false (unsubstantiated) statements or statements made in bad faith that inadmissibly dismantle their reputation in public, their activities could be significantly impaired. As a structure intended for the attainment and exercise of power, a political party must be subjected to the constant critical scrutiny of the democratic public, and a public character and transparency are already integrated into its very essence. As a result, especially in a conflict with the freedom of expression, the weight of the reputation of a political party is particularly small.
The case at issue thus concerned the conflict of two constitutional rights: the right of the newspaper to freedom of expression, as determined by the first paragraph of Article 39 of the Constitution, on the one hand, and the complainant’s right to reputation, protected by Article 35, on the other. In such cases the Constitutional Court verifies whether when adjudicating the court carried out a weighing of the conflicting rights, whether in doing so it considered the decisive circumstances from the perspective of constitutional law and the criteria that the Constitutional Court and the European Court of Human Rights (the ECtHR) have formulated through their constantly evolving case law, and whether the court appropriately assessed these criteria or circumstances with regard to the significance and aims of the relevant constitutional rights.
The Constitutional Court assessed that the court considered the circumstances that are important for the protection of each of the conflicting constitutional rights and the criteria that the Constitutional Court and the ECtHR have formulated through their decisions. It follows therefrom that – in instances where the reputation of a political party is in conflict with the freedom of the press and the right of the public to be informed of whether the political party was used to abuse power (which is a par excellence example of the subject matter of a political debate serving the public interest) – there remains extremely little room for limiting the freedom of expression.
In the assessment of the Constitutional Court, however, the court’s assessment of the constitutionally significant criterion of the average reader was inadequate. It namely interpreted the meaning that the message regarding which the complainant demanded an apology conveys for an average reader considerably too broadly. The fact that the meaning (content) of the title of the article must be assessed together with the article as a whole does not entail that the title bears practically no meaning or communicative weight. In the assessment of the Constitutional Court, the statement contained in the title of the article (“The money from Patria did not end up with Janez Janša, but with his SDS party”), as understood in connection with the part of the article printed on the front page (in particular with the statement of the Finnish police detective), implicitly conveys to the average reader the message regarding which the complainant demanded an apology, i.e. the message that the complainant received money and that it acted in a corrupt manner. The court did not specify that, in addition to this alleged message, the title (as understood in the context of the article) contained another message that would not be problematic from the perspective of the complainant’s reputation. On the contrary, it defined the phrase from the title as completely open to interpretation and as such relieved of any communicative weight, and therefore it alienated it from its social context, namely from the understanding that it refers to the money in connection with the “Patria affair”, i.e. an affair that entailed corruption. Through this inappropriate assessment of the meaning of the message for the average reader, the court framed the starting point of the weighing of the conflicting rights (the constitutional right to freedom of expression, on the one hand, and the right to reputation, on the other) in such a manner that it violated the right to the protection of reputation determined by Article 35 of the Constitution. In light of the above, the Constitutional Court abrogated the challenged judgment.